Orser v. Grant

[Indexed as: Orser v. Grant]

Barbara Jayne Orser, Petitioner (Respondent) and Andris Peter Grant, Respondent (Appellant)

Ontario Divisional Court

O'Driscoll J.

Judgment: November 21, 2000

Docket: 718/00

Esther L. Lenkinski, for Petitioner/Respondent.

Andris Peter Grant for himself.

O'Driscoll J. (orally):

I On April 20, 2000, Benotto J. heard an application to determine the child support payable by Mr. Grant for the two (2) children, aged 15 and 11 years, who are in the custody of Ms. Orser.

2 The issue before Benotto J. was the determination of Mr. Grant's income for the purposes of child support payments. The parties had been divorced; a Separation Agreement exists.

3 On February 9, 1996, Spence J. ordered Mr. Grant to pay $930.00 a month for child support. This Order pre-dated the guidelines legislation.

4 On the application before Benotto J., Mr. Grant was represented by counsel.

5 Five (5) days after hearing the application, namely on April 25, 2000, Benotto J. released written reasons. She assessed Mr. Grant's income to be $102,000.00 and that produced a guideline amount of $1,261.00 per month for the two (2) children. The retroactive part of the order was assessed at $14,000.00, payable forthwith.

6 In an endorsement of August 24, 2000, Benotto J. awarded party-party costs to Ms. Orser up to January 7, 2000, and solicitor-and-client costs thereafter, all to be assessed, with $8,000.00, payable forthwith.

7 Mr. Grant has made several applications to the Court of Appeal for Ontario regarding the order of Benotto J.

8 On October 18, 2000, Goudge J. A. endorsed the amended Motion Record of Mr. Grant as follows:

October 18, 2000 I have now had a chance to review the material filed. In my view the order of Benotto J. of April 25, 2000 which is sought to be appealed is clearly an order for interim support. The appeal route from such an order is not to this court. This motion must therefore be dismissed since I would decline to extend the time to perfect this appeal. Since the respondents did not raise this issue before the court until two weeks ago, despite an appearance in July, I would make no order as to costs. This order is without prejudice to the moving party seeking to pursue this appeal before the Divisional Court.

9 Mr. Grant was back before Laskin J. A. in the Court of Appeal on November 15, 2000 as to the costs aspect of Benotto J's order. Again, in a handwritten endorsement, Laskin J.A. advised Mr. Grant that he was in the wrong court.

10 Before me is a Notice of Motion, dated November 21, 2000, which is today. It says on p. 2 of the Record:

THE MOTION IS FOR

1. An Order extending the time for filing a motion for leave to appeal.
2. An Order granting leave to appeal the Order of Madam Justice Benotto, dated Apr. 25/200 combining Orders incorporating the Reasons for Judgment of Apr. 25/2000 and costs endorsement of Aug. 24/2000.
3. An Order staying or staying the enforcement of, the Order of Madam Justice Benotto, dated Apr. 25/2000 until the disposition of the appeal, if leave is granted. There are other grounds set out in the Notice of Motion which are not material to these reasons.

11 On page 2 of her reasons, Benotto J., said:

[4] Mr. Grant is an engineer who holds a Masters in Business Administration. He previously worked for SPAR Aerospace in a very responsible job earning about $85,000. He has held other positions since leaving SPAR several years ago. Upon being served last fall with Ms. Orser's request to have child support determined, he left his last salaried position and began working for himself. He now claims not to be working, and to have no income. He suggests that I attribute an income to him of $45,000. [5] Mr. Grant's lifestyle enables him to take frequent holidays and to travel twice a year to Latvia. He received $400,000 from the sale of the matrimonial home. The proceeds have appreciated in value.

12 This application before me falls under s.19 (1) (b) of the Courts of Justice Act, R.S.O. 1990, c. C.43:

19(1) An appeal lies to the Divisional Court from, (b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court.

13 The applicable rule is s. 62.02: which states:

62.02 (1) Leave to appeal to the Divisional Court under clause 19(1)(b) of the Act shall be obtained from a judge other than the judge who made the interlocutory order. (2) The notice of motion for leave shall be served within seven days after the date of the order from which leave to appeal is sought or such further time as is allowed by the judge hearing the motion.

14 The conditions for granting leave are set out in rule 62.02(4) (a) and (b).

15 The material before me gives no explanation for the delay that has taken place since April 25, 2000, the date of Benotto J's order. During his submissions, on several occasions, I pointed Mr. Grant to that issue: What is there in the Record to persuade me to extend the seven (7) day time limit set out in rule 62.02(2)?

16 However, if one excludes all the time up to October 8, 2000, there is still no explanation for the delay after Goudge J.A., in writing, told Mr. Grant that he was in the wrong court if he wished to pursue his right to appeal to the Divisional Court. The Notice of Motion itself has a date of November 21, 2000. There is no explanation for that, but it has to be an error. Although the Notice of Motion is dated, today, November 21, 2000, this cannot be correct because it is agreed that on November 16, 2000, the Motion Record was served and the factum was served on the following day. The Motion Record bears a court stamp as being filed on November 16, 2000, and on November 19, 2000 for the Factum.

17 This applicant, as seen from the above quoted portions of the reasons of Benotto J., is well educated and is a sophisticated litigant. He is self-represented, as is his right. However, the Rules of court apply to Mr. Grant whether he is here with counsel, or he appears in person.

18 In the absence of any reason why the time limit set out in the rule 62.02(2) (seven (7) days) should be extended, this application is quashed as being out of time.

19 I have endorsed the back of the Motion Record as follows:

For the oral reasons recorded, the application to extend the time (7 days) set out in rule 62.02(2) is dismissed. The application for leave to appeal under rule 62.02(4) (a) and (b) is quashed. Submissions as to costs have been heard. The Applicant, Andris Peter Grant, shall pay, forthwith, to the Respondent, Barbara Jayne Orser, costs fixed at $1,800. Counsel for the Respondent is to prepare the formal order. The necessity of submitting the same to Mr. Grant for approval as to content and form is hereby dispensed with. Counsel for the Respondent to present the order to the Registrar who shall bring it to me. If the draft order mirrors my order and my endorsement, I should place a fiat on the order.

Order accordingly.